K-D Lamp Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD K-D Lamp Company and Melvin E. Remley. Case 9- CA- 10549 May 13, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On February 3, 1977, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt her recommended Order, as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, K-D Lamp Company, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 2 We specifically disavow the discussion and conclusions set forth in the addendum (AUD, 11 (2), pars. 8 14) in the Administrative Law Judge's Decision. The issues considered there were neither alleged nor litigated at the hearing. 3 In her recommended Order the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or related manner." Respondent here has committed a violation which goes to the very heart of the Act. We shall therefore require Respondent to cease and desist from in any other manner infringing upon the rights guaranteed to employees by Sec. 7 of the Act. N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); H. C. Macaulay Foundry Company, 223 NLRB 815 (1976). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail or refuse to reinstate economic strikers who have unconditionally requested reinstatement when work for which they are qualified becomes available. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by the National Labor Relations Act. WE WILL make Melvin E. Remley whole for any loss of earnings he may have suffered because of our discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from August 5, 1976, until September 14, 1976, when we did offer him reinstatement. K-D LAMP COMPANY DECISION JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu- ant to a charge filed on August 11, 1976, by Melvin E. Remley, a complaint was issued against K-D Lamp Company, Respondent, on September 30, 1976, alleging that Respondent violated Section 8(a)(I) and (3) of the Act 1 by failing to reinstate Remley, an economic striker, between August 5 2 and September 15, 1976. Pursuant to due notice, the case was heard before me in Cincinnati, Ohio, on December 7, 1976. The General Counsel and Respondent were represented by counsel and the Charging Party appeared pro se. All parties were afforded full opportunity to present oral and written evidence and to examine and cross-examine witnesses. The parties waived oral argument and briefs were filed on behalf of the General Counsel and Respondent on January 3, 1977. Upon the entire record, together with careful observation of the witnesses and consideration of the briefs, I make the following: National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. 2 The complaint alleged this initial date as August 9. In his brief the General Counsel moves to amend the complaint to state August 5 as the appropriate date. Since undisputed evidence establishes the August 5 date to be correct, the General Counsel's motion to amend is granted. 229 NLRB No. 101 648 K-D LAMP COMPANY I. PRELIMINARY FINDINGS Respondent, a Massachusetts corporation, is engaged in the manufacture of automobile headlights and related equipment at its Cincinnati. Ohio, location. During the past 12 months, a representative period, Respondent had a direct inflow in interstate commerce of goods and products valued in excess of $50,000, which it sold and caused to be shipped from its Cincinnati, Ohio, plant directly to points outside Ohio. Respondent is, and was at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all times material herein International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its Local 1258 (collectively referred to as the Union) were labor organizations within the meaning of Section 2(5) of the Act. 1I. THE UNFAIR LABOR PRACTICES With some exceptions not pertinent to the present proceeding, Respondent's production and maintenance employees in Cincinnati are represented by the Union. The collective-bargaining agreement covering these employees expired on August 7, 1974. No agreement for a renewal contract having been reached by that time, the Union struck on August 8, 1974. Just before the strike began there were approximately 160 employees in the bargaining unit here involved. Of these, around 9 were in the paint department and from 75 to 100 in the assembly department. The plant continued to operate during the strike, which continued until August 5, 1975. Mr. Frank O. Leurck, respondent's manager of factory personnel and its only witness at the hearing, testified that during the strike it was necessary to hire some 800 persons in order to achieve an adequate complement of satisfactory employees. When the strike ended, about 60 employees applied for reinstatement. 3 Sometime in August 1975 Remley tele- phoned Mr. Lee Seiler, Respondent's manager of opera- tions, about returning to work. On August 29, Seiler wrote Remley that there were then no openings in Remley's department. Remley was advised to report to Seiler and "sign the proper form so that [his] name [could] be added to those on the recall list." The letter concluded: "In the event of a future job opening, first consideration will be given to those on the recall list for those in the department where the opening is available." On September 2, 1975, Remley and James F. Cox went to the plant and signed the recall list, thereby making an unconditional offer to return to work. Cox and Remley had been employed as service and utility workers in Respondent's paint department since 1942 and 1947, respectively. Paint spraying was among their duties. Remley had been president of the Local Union since 1973 and previously was a union committeman and/or shop steward in the paint department for some 26 years. Cox was reinstated on October 6, 1975. He then 3 Leurck testified that by the time of the present heanng all but two (or possibly three) had been reinstated. It does not appear why those few had not been reinstated. 4 Apparently there is disagreement as to wsho had signed first. It is unnecessary to resolve that conflict in this case. apparently spent most of his working time at spray painting. He testified that, although there had been only 9 employees in the paint department when the strike began, upon his reinstatement there were some 12 to 14, none of whom had worked for Respondent before the strike. When he left, at the end of July 1976, there were around seven or eight. During the last week in July 1976 Remley spoke to Leurck about the possibility of being recalled for a position in the assembly department, but Leurck maintained that a striker could be reinstated only in the department in which he had been working before the strike and that Respondent "would hire from the outside for the assembly department, once all of the assembly department employees were recalled to active service." In this connection, Remley's uncontradicted testimony was: Well, I asked [Leurck] did he think it was fair-I told him I didn't think it was fair that when you have permanent openings in the plant, since we are all supposed to be classed as employees, and since we don't have no damn agreement that would particularly isolate employees in one department or another, that I didn't think it was fair that just because a person happened to go out on strike in one department and signed up to come back to work unconditionally, that the only place they will consider him to work is the department which he was originally in. And he says that that-they was going to-they felt that they had to take us back unconditionally in the department which we was from, but they didn't have to take us in any other department. Either in the same conversation or in another conversation toward the end of July, Leurck told Remley that he could resume work for Respondent only "if there is a permanent opening, and that has to be by somebody either quitting or dying." At that point Remley said that he understood Cox might be about to go to work for the post office. Leurck replied: "Well, in that case there will be a permanent opening." Within a few days, however, when it became generally known that Cox was indeed going to work for the post office, Leurck telephoned Remley and stated that striker Evie Taylor, also employed in the paint department, had signed the reinstatement list before Remley. It appears that, as a matter of fact, Remley and Taylor had applied on the same day.4 Cox failed to report to work on August 2, 3, and 4, 1976. Accordingly, under a company rule, he was terminated as of August 5.5 Remley and Taylor were both recalled by letters dated September 14, 1976, and resumed work the next day. The General Counsel contends that Remley should have been recalled to replace Cox upon the latter's termination on August 5, 1976. Respondent, on the other hand, maintains that until September 14 there was no permanent position in the paint department available for Remley. Respondent asserts that Cox's departure did not automati- 5 Although denominated a discharge, Cox's termination apparently was in fact a voluntary quit to assume a job with the postal service. 649 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cally create a fillable vacancy since (1) business declined during the early part of August, and (2) Remley could not be reinstated between mid-August and mid-September because Mr. Stone, Respondent's president, was out of the country for that period. Since Cox's termination at least prima facie created a vacancy, the evidence in support of Respondent's two-point defense will now be examined. A. Asserted Decline in Business In support of Respondent's assertion of a decline in business after the end of July, Leurck testified as follows: Q. Mr. Remley has testified that you told him in late July that the business was good at that time. A. That is correct. Q. Did the business continue good then into August and through August? A. No, it did not. It dropped off almost sixty percent. * * Q. Mr. Leurck, when did business start to decline? A. At the end of July. ... The first three weeks of August were horrible. No production or sales records were offered. As stipulated at the hearing, the total hours worked by hourly employees in the paint department during July, August, and September, 1976, were as follows: Leurck conceded that when Cox left there was spray painting to be done. It is undisputed that after Cox's departure, Foreman Richard Kolde apparently did sub- stantial amounts of spray painting. Remley testified, without contradiction, that he saw Kolde performing such work on August 6, the day after Cox's termination. The time spent by Kolde in spray painting is not included in the figures set forth above. Whatever may have been the business situation in the plant as a whole (as to which there is no evidence), in view of Respondent's position that employees' reinstatement rights were limited by departmental boundaries, Respon- dent's defensive claim of a decline in business must be appraised with reference only to the paint department. The available data and undisputed evidence do not support Leurck's conclusory testimony. Thus, in the first week of August the number of employee hours worked in the paint department was about the same as in the week ending July 3. The number in the second week of August somewhat exceeded that in the first week of July. And the employee hours shown for August were augmented by work done by Foreman Kolde. By the third week in August the employee hours worked in the paint department exceeded those in the third week of July. No matter how the figures are viewed, they do not support Leurck's estimate of a 60 percent decline in business in the early part of August. From the second week of August until Remley and Taylor were reinstated, there was apparently sufficient work in the paint department to require the services of transferees from the assembly department. Week Ending July 3 July 10 July 17 July 24 July 31 August 7 August 14 August 21 August 28 September 4 September 11II September 18 September 25 No. of Hours 133.58 80.00 184.83 209.67 226.50 131.75 141.17 185.16 256.00 245.42 211.67 235.00 193.00 During the same period two employees, Ruth Rennick and Virginia Ralston, were transferred temporarily from assem- bly to the paint department. The hours worked in the paint department by these transferees were: Week Ending August 15 August 22 August 29 September 5 September 12 Rennick Ralston 8 40 0 0 0 21.17 0.00 40.00 40.00 32.00 Cox testified that Ralston had started to work in the paint department about 6 weeks before he left. At first she was on a "temporary" basis but later "as a regular." B. Stone's Absence Leurck testified that President Stone was out of the country from around the 10th to the 15th of August until about the same date in September. On direct examination Leurck maintained that he did not have authority to take on any employees in Stone's absence. In this connection Leurck's testimony was: Q. Did you personally have the authority to create new permanent positions in any departments at the company's facilities? A. No. Q. When this occurred what was the process involved, say during July and August and September of 1976 in particular? A. Whenever any foreman would come to me and ask whether he could put on anybody, I would say, "Well, we will present the figures to Mr. Stone," and Mr. Stone would, in view of the orders coming in, would make a judgment as to who we should hire-not who we should hire, but how many we should bring in. Q. Did this go to replacing employees as well as just adding additional employees to the work force? A. It did. Q. Did Mr. Stone personally then have to approve the addition of any permanent people? A. He did. Q. Did this apply to new hires as well as to people returning from the strike? A. It did. 650 K-D LAMP COMPANY Q. Where was Mr. Stone from approximately August 10 until September 10 or I I? A. In the Middle East. Q. During that period did he authorize any persons to come in on a permanent basis? A. No, he did not. Leurck then testified unequivocally that no persons were "brought into the assembly department ... on a perma- nent basis, between August 5 and September 14," 1976. However, on cross-examination he conceded that between August 25 and September 10 Respondent hired 12 employees "in classifications which were an integral part of the production process." He produced a subpenaed record which showed that two assemblers had been hired on September 7 and three on September 10;6 six press operators in August and two on September 9; and one employee in the catalog department on August 16. On cross-examination Leurck also acknowledged that when employees Rennick and Ralston were transferred to the paint department, employees were hired to fill their positions in the assembly department. Since Stone did not return from abroad until September 10 or 11, at the earliest, it is clear that none of the hires listed above was specifically authorized or cleared by him. Leurck's testimony concerning the authority for these hires was: Q. Now with whom did you clear these new hires? A. Mr. Seiler on the press department. * S Q. Mr. Seiler then has the authority to hire employees without clearing through Mr. Stone? A. Yes. Q. He does? A. Let's put it this way: He did in this instance. * * * Q. How about the assemblers hired on 9-10, the three assemblers hired on 9-10, did you talk to-that's your department, isn't it, assemblers? A. Actually they are all my departments, but I don't recall asking anyone about those three, for hire. Q. You then took the initiative on your own to hire those employees? A. That's right. Q. I am not certain what your bailiwick is. Are you over all of these employees, including the press operators? A. I do all the hiring. Q. You do all the hiring? A. Except for catalog. 6 Leurck testified that the three "assemblers" hired on September 10 were actually in the catalog department, being too young to work on production machinery. He thought the same might be true of the September 7 hires, who were brought in without going through the regular process of personnel work. It is not clear why these people were ostensibly placed in jobs which they could not legally fill. But. in any event. Leurck's testimony in this regard raises doubt as to the asserted sharp separation among departments. There is one other factor of great significance in appraising Respondent's contention that Cox could not be replaced until Stone returned. There is only Leurck's conclusory testimony, adduced largely by leading ques- tions, to support Respondent's contention that no employ- ees could be hired or even reinstated except by Stone. Had Stone testified to such severe restriction on the authority of high-echelon management personnel and had he been subject to cross-examination as to the basis of the restriction, his testimony might have been persuasive. As the person imposing the restriction, he was in the best position to testify knowingly concerning it. But Stone did not testify. After appearing at my request at a prehearing conference, he left the premises shortly after the hearing opened. In its brief, Respondent substitutes for relevant testimo- ny a quotation from a management handbook 7 to establish that "for the President to retain exclusive power to create new positions not only was understandable, but, given circumstances, quite prudent." In addition to the fact that the quotation does not necessarily support the contention of Respondent's counsel, it should be noted that we are not here concerned with the creation of "new positions," but rather with the replacement of an employee who left unexpectedly. Absent any factual explanation, it is virtual- ly inconceivable that any production company the size of Respondent would voluntarily place itself in a position where it was unable to maintain a complement of employees sufficient to meet its production needs during an extended absence of its president. That help was needed in the paint department is demonstrated by the facts previously set forth as well as by the fact that, immediately upon Stone's return, two employees, Taylor and Remley, were recalled. The fact is, and I find, that Cox's departure as of September 5 created the vacancy of a permanent position in the paint department. The evidence also clearly establishes that, contrary to Respondent's contention, employees could be, and were, hired by Respondent during Stone's absence.s So far as the present record discloses, Remley was entitled to immediate reinstatement to the Cox position. Remley had had some 39 years' experience with Respon- dent, largely in spray painting, precisely the work that Cox had been doing. There is no evidence that any other employee had similar experience. Although Remley quoted Leurck as having at one time maintained that Taylor had priority on the recall list, Respondent has not so contended in this proceeding. Respondent's position is simply that there was no vacancy "available" for Remley until September 14, 1976. That position is contrary to the preponderance of the evidence. Accordingly, on all the evidence, I find that, as alleged, Respondent failed and refused to reinstate Remley be- 7 Puff, Manpower Requirements, in H.B. Maynard, Handbook ofManufac- turing Management (1970), pp. 8-4-8-5. 8 In view of the hiring of new employees in other departments. it is not unreasonable to infer that if any restriction had been placed on Leurck, it was directed only against reinstatement of Remley. union president and longtime officer. 651 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween August 5 and September 14, 1976, in violation of Section 8(a)(3) and (1) of the Act. A brief addendum appears in order. Remley was statutorily entitled to reinstatement in any available job for which he was qualified. Fire Alert Company, 207 NLRB 885, 886 (1973). Although there was no specific evidence of Remley's qualification for any available job in the assembly department, Leurck testified that employees temporarily transferred from the assembly department were usually competent to do the work in the paint department. Leurck's testimony also indicated that work in the assembly department was neither highly skilled nor specialized. It is reasonable to assume that Remley, with many years' satisfactory service with Respondent, would be qualified to fill a job in the assembly department, particularly in view of Leurck's testimony concerning the difficulty he encountered in obtaining satisfactory replace- ments for the strikers. Remley's statutory right was reinforced by the terms and conditions of employment prevailing at the plant. The expired collective-bargaining agreement between Respon- dent and the Union was received in evidence as an Administrative Law Judge's exhibit. Leurck testified that, so far as here relevant, that agreement embodied Respon- dent's prior practices. That contract contained specific provisions for transfers, both temporary and permanent, between departments. It provided that permanent vacan- cies were to be posted and notices thereof were to be mailed "to all laid off employees who the Company believes may be capable of filling the job." Intradepart- mental transfers were preferred but requests for interde- partmental transfers were to be considered before there was outside hiring. Although seniority was generally accrued on a departmental basis, an interdepartmental transferee carried his seniority with him. And Leurck testified that job knowledge and seniority were taken into consideration, but "[g]enerally it would be by seniority" in the plant as a whole. Leurck testified that the provision for permanent transfers had been abolished upon expiration of the contract. However, there is no suggestion that this change was discussed with or approved by the Union. Although the contract had expired, Respondent was not at liberty unilaterally to change the existing terms and conditions of employment embodied therein. Respondent did not ex- plain the reasons or circumstances of the alleged change. Absent any explanation, it is not unreasonable to infer that it was designed primarily to restrict strikers' reinstatement rights. Thus, no weight can be given to Leurck's testimony that permanent transfers had been abolished upon expira- tion of the contract. As a striker, Remley retained his employee status. Accordingly, after his unconditional request for reinstate- ment he was entitled to an opportunity to bid on vacancies in departments other than the paint department. As an unrecalled striker, he was essentially in layoff status (i.e., Under the present charge, filed on August 11, 1976. presumably only vacancies arising since February IH, 1976. could be considered. "' The General Counsel's conduct of this litigation is apparently in line with a position previously taken by the Regional Director. Respondent's brief states that on November 19. 1975, Remley filed a charge (9 CA -9842), an idle employee awaiting recall) and thus entitled to notice of vacancies for which he might qualify. In view of the foregoing considerations, I should be inclined to conclude that Respondent violated the Act by refusing to consider Remley for reinstatement to vacancies that may have arisen in other departments between September 2, 1975, 9 and September 14, 1976. Fire Alert Company, supra. But the present complaint specifically alleges that the violation commenced on August 5, 1976, when a vacancy arose in the paint department. Although the collective- bargaining agreement was received in evidence and Leurck was questioned about the transfer provisions, counsel for the General Counsel did not press the matter and no evidence was developed as to earlier vacancies in other departments to which Remley might have been entitled. In his brief the General Counsel again contends only that Remley was entitled to reinstatement in the paint depart- ment when Cox left on August 5, 1976.10 In view of the course of the present proceedings and the fact that the earlier availability of jobs in other departments was not fully litigated, I have limited my finding of violation to the period alleged, i.e., August 5 through September 14, 1976. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to reinstate economic striker Melvin E. Remley when work for which he was qualified became available, and after he had unconditionally requested reinstatement, thereby discouraging membership in the Union, Respondent has violated Section 8(a)(3) of the Act. 4. By the foregoing conduct Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed to them by Section 7 of the Act, in violation of Section 8(aX)() of the Act. 5. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to offer Remley reinstatement from August 5 until September 14, 1976, I shall recommend that it be required to make Remley whole for any loss of earnings he suffered by reason of Respondent's failure to reinstate him during that period by payment to him of a sum of money equal to that which he the "gravamen [of which] was that recall by department was unlawful." According to Respondent, that charge was dismissed, the Regional Director stating that it was lawful for Respondent to reinstate strikers "in the order in which they requested reinstatement as job vacancies occur in the depart- ment in which they were working at the time of the strike." 652 K-D LAMP COMPANY normally would have earned during that period. Loss of earnings shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact and conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I issue the following recommend- ed: ORDER" Respondent, K-D Lamp Company, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to reinstate economic strikers who have unconditionally requested reinstatement when work for which they are qualified becomes available. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: H In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Make Melvin E. Remley whole, in the manner set forth in "The Remedy" section of this Decision, for lost earnings caused by Respondent's failure to offer him reinstatement between August 5 and September 14, 1976. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Cincinnati, Ohio, facility copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 12 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 653